In regards to the legal application of a foreign marriage, the law should be judged based on the specific case involved. Following are the basic principles when consulting a foreign marriage lawyer on a specific case:
1. The marriage conditions will be considered and should confirm if the parties have a common residence. If (a.) the husband and wife regularly reside in the same home, and have been for more than one year or b. the parties do not share a common residence but both belong to the same nationality, the law will be applicable. However, if they do not share the same nationality, the laws are applicable so long as they are in China and the marriage was registered and is valid.
2. If the husband and wife share the same residence, the marriage is subject to the local law. If there is not a common residence, the law of the country of marriage registration applies.
3. The husband and wife may choose to apply the law of the place of residence, the home country of one party, or the place of main residence. If both cannot negotiate which law to abide, the law in the common residence will be applied. If there is not a common residence, the law of the common nationality will be applied.
4. If the couple divorces, they may do so in form of a divorce agreement. In this case, the two parties consult the law of where they reside or the home country of either party. If an applicable law is not chosen upon divorce, it will default to the common nationality law. And in the case of different nationalities, the laws of where the marriage was registered will be applied.
5. If the parties cannot reach an agreement of divorce and rely on litigation, the laws of the court where the case is accepted will be applied. So, if the lawsuit is in Chinese courts, the Chinese laws will have jurisdiction.
